Can the FTC enforce Google deal?

Google insists that its voluntary agreement to alter some search-engine practices contains legally enforceable measures — even as the chairman of the Federal Trade Commission said the agency is largely at the mercy of the company’s willingness to behave itself.

“I don’t think they want to go through this again,” said FTC Chairman Jon Leibowitz. “If they do, we’ll be back where we started and I don’t think we want to do that.”

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Leibowitz and Google Chief Legal Officer David Drummond insisted there will be a means of monitoring th agreement, but critics of the deal insist those amount to little more than window dressing.

In closing its nearly two-year probe into whether Google violated antitrust and anti-competitive laws, the FTC voted 5-0 on Thursday to be satisfied with a letter from the Mountain View, Calif.-based company promising to tweak a couple of its controversial behaviors in search and advertising.

Once implemented, Google vows to let companies manage their Google ad campaigns with the same software they use to manage ad campaigns elsewhere on the Web. Furthermore, websites like Yelp and TripAdvisor will be able to opt out of having snippets of their reviews included in Google’s own shopping and restaurant sites, a practice known as “scraping.”

In both of those cases, it will be fairly easy to see whether Google complies because the outcomes will appear publicly on the Web. But infractions of another promise — that Google will not penalize companies that opt out of scraping by demoting them in search — will be harder to detect without Google allowing the FTC access to its secret search algorithms.

“I don’t care whether the chairman says this is enforceable or not, it is not enforceable,” groused angry Commissioner Tom Rosch, who wrote a scathing dissent of the decision and wanted the FTC to file an antitrust lawsuit against Google. “I don’t care if it’s monitored or not. It makes no difference to me.”

It does matter to Leibowitz, though. Google’s letter declares that not following through on these promises would be a violation of Section 5 of the FTC Act barring “unfair methods of competition.” The letter also indicates Google will file annual reports during the monitoring period showing its compliance and, if accused of wrongdoing, will “address the commission’s concerns or explain to the commission why it believes that it has acted in a manner consistent with its commitments.”

Further, Google said it would grant the FTC access to documents and to corporate leaders to clear up the accusation.

Leibowitz said during his news conference that there was “no reason to think” that Google would fail to uphold its end of the bargain that averted litigation. Yet when asked about the $22.5 million fine the FTC hit Google with last year for violating terms of a settlement surrounding online privacy, Leibowitz conceded the agency would “have to wait and see.”